Dau v Emanuele
[1995] FCA 995
•4 DECEMBER 1995
C A T C H W O R D S
CRIMINAL LAW - ENTRAPMENT - Bribery charge - Statements by bribed official suggesting amenability to bribery - Whether entrapment may be found in a case where the accused has denied any impropriety - Whether accused was induced to commit a crime he would not otherwise have committed - Relevance of warnings given to accused by his associates - Whether conduct of the bribed official was so improper as to require exclusion of evidence of the offence on public policy grounds - OPPRESSION - Trial extended over period exceeding eight years from date of charge - Causes of delay - Whether delay oppressive.
Crimes Act 1914, s.73
ALLAN JOHN DAU v GUISEPPE EMANUELE
ACT G.25 of 1995
CORAM: GALLOP, WILCOX and BURCHETT JJ
PLACE: CANBERRA
DATE: 4 DECEMBER 1995
IN THE FEDERAL COURT OF AUSTRALIA )
)No. ACT G.25 of 1995
NEW SOUTH WALES DISTRICT REGISTRY )
)
GENERAL DIVISION )
ON APPEAL FROM A JUDGE OF THE SUPREME COURT
OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:ALLAN JOHN DAU
Appellant
AND:GUISEPPE EMANUELE
Respondent
CORAM:GALLOP, WILCOX AND BURCHETT JJ
PLACE: CANBERRA
DATE: 4 DECEMBER 1995
MINUTES OF ORDER
THE COURT ORDERS THAT:
The appeal be dismissed.
Note:Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
)No. ACT G.25 of 1995
NEW SOUTH WALES DISTRICT REGISTRY )
)
GENERAL DIVISION )
ON APPEAL FROM A JUDGE OF THE SUPREME COURT
OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:ALLAN JOHN DAU
Appellant
AND:GUISEPPE EMANUELE
Respondent
CORAM:GALLOP, WILCOX AND BURCHETT JJ
PLACE: CANBERRA
DATE: 4 DECEMBER 1995
REASONS FOR JUDGMENT
THE COURT: This is an appeal by the informant, Allan John Dau, against an order of a Judge of the Supreme Court of the Australian Capital Territory (Higgins J) upholding an appeal against the conviction and sentence of the respondent, Guiseppe Emanuele, on a charge brought under s.73(3) of the Crimes Act 1914. Commander Dau charged that, on 28 November 1985, Mr Emanuele:
"... did give a Commonwealth Officer, namely Anthony Robert HEDLEY property, namely ten thousand dollars ($10,000.00) cash monies in order to influence or affect the said Anthony Robert HEDLEY in the exercise of his duty as a Commonwealth Officer."
The magistrate found the offence proved, recorded a conviction and sentenced Mr Emanuele to nine months imprisonment suspended upon his entering a recognisance in the sum of $10,000 to be of good behaviour for three years.
On appeal, Higgins J set aside the conviction and sentence. He did not order an acquittal or remit the matter to the Magistrate's Court for further hearing. Instead, he ordered that further proceedings on the information be permanently stayed. Two findings underlay his Honour's decision to take that course: that the offence had occurred as a result of entrapment of Mr Emanuele and that the manner in which the prosecution proceedings were conducted by the magistrate was oppressive.
Although the evidence adduced before the magistrate was voluminous, the essential facts fell within a small compass. They were relatively uncontroversial. There was much unnecessary evidence and cross-examination. We will refer only to that part of the evidence that is relevant to the findings of Higgins J, both of which are challenged by the appellant.
The facts
At relevant times, Mr Hedley was a First Assistant Secretary in the Commonwealth Department of Territories. One
of that Department's responsibilities was the supervision of Commonwealth interests in the Australian Capital Territory. In May 1985, the Commonwealth government decided to sell the Belconnen Mall, a shopping centre situated at Belconnen. It was decided that the best method of effecting the sale was to register prospective tenderers and call tenders from them. Tenders were required to be deposited, by 2pm on 28 November 1985, in a locked tender box located outside Mr Hedley's office.
In order to stimulate interest by prospective tenderers, an advertising campaign was undertaken in June and July 1985. The advertising apparently came to the notice of Mr Emanuele, an Adelaide property developer. He caused his company, Emanuele Holdings Pty Limited, to register as a prospective tenderer. In about July 1985, the exact date does not appear, Mr Emanuele travelled to Canberra. He met Mr Hedley, for the first time. Mr Hedley escorted Mr Emanuele, and an associate named Tony Fabrizioni, on an inspection of the Mall.
Mr Emanuele, or one or more of his associates, saw Mr Hedley in Canberra on several occasions between that initial visit and 18 October 1985. Mr Hedley seems to have exerted himself to build a relationship with Mr Emanuele. He met Mr Emanuele at the airport on some visits and lunched with him on 13 September. He even took him to see his (Mr Hedley's) personal investment properties. However, it is not suggested that anybody was guilty of any impropriety at any of these early meetings.
On 18 October 1985, Mr Emanuele and Mr Hedley dined together at a Canberra restaurant. It was common ground at the trial that, during the course of the dinner, Mr Emanuele asked Mr Hedley the names of the other prospective tenderers. But there was a dispute as to the response. Mr Emanuele said that Mr Hedley wrote down a list of names on a piece of paper and gave it to him. Mr Hedley denied this, saying it would have been grossly improper for him to indicate "who was in and who was out" of the bidding process. That statement was undoubtedly correct but, unfortunately for his denial, Mr Hedley was confronted by a Bankcard voucher in his name, dated that day, and containing, in his handwriting, a list of names of investors with information about each of them. We need not state the various explanations offered by Mr Hedley in evidence. It is sufficient to note that, in his reasons for conviction, the magistrate dealt with them under the heading, "Mr Hedley's Amazing Attempt to Explain Away the Bankcard Slip", and to agree with Higgins J's comment: "There is no credible explanation for the existence of that document, other than that provided on behalf of (Mr Emanuele)". Higgins J went on:
"The conclusion was inescapable and, indeed, accepted by his Worship that, for reasons which were not explained, Mr Hedley had deliberately acted with gross impropriety in passing confidential information, not previously
solicited in any way, to the appellant [Mr Emanuele]."
This conclusion is not challenged by counsel for the appellant.
On 12 November 1985 Mr Emanuele and Mr Fabrizioni returned to Canberra. On the following morning, they again inspected the Mall with Mr Hedley. By this time, it appears, Mr Emanuele had become keen to purchase the Mall but he thought he might not be able to afford to do so. The Mall was expected to sell for a figure between $70 million and $80 million. Mr Emanuele could raise a maximum of $72.6 million. However, he estimated that his expenses would be about $2 million, leaving only $70.6 million for the purchase price. Mr Emanuele thought an offer of this amount might be insufficient. So he had conceived the idea of submitting a second tender, offering a total sum of $82.6 million payable by instalments. The problem was that the second tender would not comply with the tender conditions, so it might be summarily rejected.
Immediately before the commencement of the 13 November inspection, whilst Mr Emanuele and others were having coffee, Mr Fabrizioni had a conversation with Mr Hedley, nobody else being present. It is common ground that this conversation contained the first reference to a possible bribe. The account of it that follows comes from a file note made by Mr Hedley immediately after the event. Mr Fabrizioni
asked Mr Hedley how many tenders he thought he would get. Mr Hedley responded that he really did not know and added "I am hopeful of getting some but I won't really know until 2pm on 28 November". Mr Fabrizioni told him that Mr Emanuele would return to Canberra on 26 or 27 November and asked whether he (Mr Emanuele) could see Mr Hedley about 1.30pm on 28 November. Mr Hedley commented that it would be "getting a bit late to get information about the Mall", as it would be only half an hour before tenders closed. According to the file note, the conversation went on:
"Mr Fabritzioni [sic]: 'Tony, what I have in mind as [sic] this. Joe will come with two envelopes. In one he will have a high tender and in the other he will have a low tender. You tell him if there are any others in the box and Joe will wait until 2.00pm. If there are no other tenders in the box, Joe will put the low tender in. If there are other envelopes in the box Joe will put the high tender in. You understand what I mean'.
Mr Hedley:'I cannot do that'.
Mr Fabritzioni [sic]: 'Tony, Joe is a very nice man. He is a good friend to me. He is also a very generous man. You understand - very generous - and if you could tell him this and if it is a low tender that he puts in the box and if Joe gets the Mall, Joe can be very, very generous. He will be very generous to you. You understand. I am not talking about a few dollars, I am talking about hundreds of thousands. Tony, Joe will be here at 1.30 pm on 28 November.'"
The file note states that Mr Hedley "was so shocked at the suggestion" that he said nothing. He and Mr Fabrizioni walked back to where the others were having coffee. The party then inspected the building. After visiting another shopping mall, Mr Hedley dropped Mr Emanuele and his associates in London Circuit and returned to his office where he dictated the file note. He said nothing to Mr Emanuele, at any time, about the conversation with Mr Fabrizioni. However, he reported the conversation to the Secretary of his Department. The Secretary informed the Commissioner of the Australian Federal Police and the Director of Public Prosecutions. It was decided that Mr Hedley should wear a listening device during further conversations with Mr Emanuele or his associates. By arrangement with the hotel management, listening devices were installed in the hotel rooms that Mr Emanuele and his associates were to occupy during their 27-28 November visit to Canberra. These listening devices were successful in capturing the conversations between Mr Emanuele and Mr Hedley, and other conversations in the hotel rooms, during that visit.
On 27 November, Mr Hedley met Mr Emanuele and his associates at the airport. He drove them to their hotel. During the journey, Mr Hedley commented: "Things are a bit grim, Joe ... These bloody interest rates are upsetting things a bit and a number of people have pulled out in the last, in the last couple of days." Mr Emanuele responded: "Have
they?". He asked whether he was the only one left in. Mr Hedley replied: "You and Morrie Alder are the only guaranteed". He added that Mr Alder was not eligible; he was on the black ban list because "he got into that strife with Normie Gallagher (of the Builders Labourers' Federation) and the Commonwealth has put him on the black ban list so at this stage [it] is looking very grim".
After conversation about arrangements for the day, Mr Emanuele returned to the topic of the purchase. He assured Mr Hedley that he was still keen to buy. Bruce Wales, one of his associates, then asked Mr Hedley: "Who are the starters in this?" Mr Hedley responded by retailing information as to their positions allegedly supplied by some companies which had earlier expressed interest in tendering.
A second tape recorded a conversation at the Lakeside Hotel later that morning. Another Emanuele associate, David Archbold, asked Mr Hedley: "Who are the players who're in this at the moment?" Mr Hedley responded that there had "been a big drop off in the last couple of days ... a massive drop off". He went on to speak about the companies which had withdrawn, giving reasons in some cases. He said "Morrie Alder's still in", and mentioned the black list. He added: "I haven't had the heart to tell Morrie he's not in but even if he was the top tenderer he wouldn't get it". The conversation then turned to matters relating to the
management of the Mall, during the course of which Mr Hedley promoted its attractiveness as an investment.
A further tape covered an inspection of the Mall. Mr Hedley accompanied Mr Emanuele and others. At one stage, Mr Hedley and Mr Archbold were alone on the roof of the building. Mr Archbold asked Mr Hedley the number of inspections he had made with potential purchasers. Mr Hedley said he had shown ten groups over the building. Mr Archbold asked who they were. When Mr Hedley demurred to answering, Mr Archbold said: "Let me put it this way, the more you can tell me the more I can organise the right number". Mr Hedley referred to the bond put up by registered tenderers and said there were "about a dozen serious ones" at stage one but "things have changed over time". He made no comment when Mr Archbold said: "Now you're back to about two or three, if that". The conversation turned to the mechanics of the sale. Mr Hedley indicated settlement would be at the end of March. Mr Archbold then asked: "What would happen if there was an additional cash incentive that might come in later on". Mr Hedley asked him what he meant. There was some fencing around, after which the conversation went as follows:
"HI've got a commercial mind, right.
ARight, if I was to offer you an 'X' amount of money.
HRight
AAnd then I was to say to you, alright on top of that I'm going to give you some more money.
HWhat have you got in mind, well can we get down to tin tacks?
I had a chat with Tony last time.
Er, you know, and various proposals were put.
HWhat sort of .....
(A [heard on the tape] over H)
I can't tell you the number.
If we were to offer you something that is within realism, right.
HRight.
AAt a fair return in the market place.
HRight.
ARight, and then we were able to give you another carrot at the other end there, would that appeal to your organisation.
HIt might, it might.
I mean I've got to know what the details are. I mean basically we're one day off bloody tender settlement.
This has been floating around for ninety odd days now, a hundred days ah now, (no?) I'm prepared to listen to anything.
You tell me what you want to do, if you want to talk to Joe privately in your hotel room, well shit you can do that.
AWe'll do that later to work the actual numbers out, in fact we've worked the numbers out it's just a question of .....
HWell Joe said he was going to come to my, well not Joe, Tony said he was going to come to my office anyhow tomorrow to have a chat with me and um .....
So I mean I'm prepared to listen to whatever you want to put up, but I've got to know what the details are and we can talk discreetly anywhere you like.
I mean .....
ALet me say this, it would ..... what I'm thinking of would give you a very fair capital value for this but also give you another incentive. Because what I'm paranoid about is fucking SFIT coming in.
HThat's the phone call I'm waiting for."
The reference to SFIT was a reference to a Commonwealth superannuation fund.
Mr Hedley ended this conversation by saying to Mr Archbold:
"Look I've written today ..... this morning off, this afternoon off, tonight off, tomorrow morning off.
Now I'm prepared to talk turkey with you, with Tony, with Joe whoever he want [sic] to talk to me about any deal they want to put up alright. We'll talk wherever you want to talk."
Later that day Mr Hedley did "talk turkey" with Mr Emanuele, in the latter's hotel room. The meeting was arranged at lunch time, when Mr Hedley told Mr Emanuele that he was "prepared to talk confidentially to you" and said "I can do a deal, you know". They met in Mr Emanuele's room late in the afternoon. Mr Emanuele told Mr Hedley that he would "love to buy Belconnen". He asked: "Its two or three of us or what?" Mr Hedley referred to Mr Alder being "in" but "not eligible" and said he did not know at this stage whether there was anybody else but suspected there would not be. Mr Emanuele prevaricated in putting a question but Mr Hedley encouraged him: "I know you well. You can speak freely with
me ... nobody else here. We can talk". Mr Emanuele hedged again but Mr Hedley said:
"Look ... I made it clear I had a chat with Tony the other week.
Tony slipped away and talked to me and I said ... I'd .. you know.
You put something to me and I'll just ... you know ... What do you have in mind?"
The conversation went on:
"E.For you?
H.Yeah.
E.50.
H.How do I know I get it?
You want to shake my hand now - fifty thousand right.
But how do I know I get it Joe?
E.I swear on the ...
H.No, I don't want to swear on the bloody Bible, but I mean I'm talking [sic] a big bloody risk.
E.Tony ..
H.Yeah.
E.You can ask anybody in Australia, in Adelaide."
Mr Hedley asked Mr Emanuele what he wanted him to do. It took some time to get a clear answer. There was talk about one or two tenders. Mr Hedley assured Mr Emanuele "you're not offending me ... its a question of, now you know, trying to work something out". Finally, it emerged that Mr Emanuele would see him on the following day with two tenders. Mr Hedley reiterated the risk he was taking. Mr Emanuele repeated his promise to "do 50 right away" and made a reference to "double" next year. He emphasised cash: "it can't be checked, you understand". The conversation then turned to Mr Emanuele's finances. At the end, it was understood that Mr Emanuele would go to Mr Hedley's office at 1.45pm the next day with two tenders, one for about $70.5 million payable immediately and the other for a larger sum payable over four years. Apparently, the idea was that, if $70.5 million was the highest tender, the other tender would be discarded; if it was not, Mr Hedley would try to have the other tender preferred to the highest conforming tenders. The conversation went on for a long time. Towards the end, Mr Hedley put the question:
"What you're saying is that if we can do a deal on - if I can somehow do a deal on this basis here, if I can, you'll give me ten grand tomorrow."
Mr Emanuele replied "yes" and went on to talk of payment of "another 40" later, explained as "immediately next week". The meeting ended with Mr Emanuele making arrangements for $10,000 cash to be brought to Canberra.
Mr Hedley left the hotel but returned to dine with Mr Emanuele and his associates. After dinner, he had a further conversation with Mr Emanuele where the arrangement was confirmed.
On the morning of 28 November, Mr Emanuele telephoned Mr Hedley at his office and told him he would put in a tender, and "then I'll get in a few other unconforming tenders". He said "this is all legitimate" but "I'll still do what I said with you, do you understand, if I do the business". He asked Mr Hedley: "when can I see you, just me and you". Mr Hedley offered to come to his room or meet elsewhere. It was agreed that Mr Hedley would come to Mr Emanuele's room at 11.30am. In fact he came sooner. Mr Emanuele gave him $10,000 in cash and promised the balance of the $50,000. He also said that "every million dollar we saving", apparently on $70.6 million: "I'll give another ten thousand dollars". They discussed what was to happen at 1.30pm - Mr Emanuele would arrive with one envelope containing several tenders. Mr Emanuele said, if there was another tender at $75 million, he would have an offer to beat it. Mr Hedley clarified his role:
"Okay, right so the tender comes in at 75, you want me to look after you right as best I can up to 75."
As we understand the situation, Mr Emanuele's plan was to submit a series of tenders, at $2 million intervals, and for Mr Hedley to take the lowest tender necessary to beat any other tender and discard the rest.
Mr Emanuele attended Mr Hedley's office at about 1.30pm. He was arrested, charged and released on bail. At some stage Mr Fabrizioni was also charged.
The proceeding before the magistrate
It took some time for the proceeding before the magistrate to get under way. The hearing was adjourned from time to time while the tapes were transcribed and translated (several conversations in the hotel rooms were in Italian) and the prosecution evidence was prepared. A hearing date was fixed, at this stage on the basis of the hearing being a committal hearing, for 3 November 1986. This date was vacated because of an application for a stay of proceedings, the hearing of which commenced on 4 September 1986 but was not completed until 4 November. The stay application was rejected. Mr Emanuele filed an application under the Administrative Decisions (Judicial Review) Act 1977 challenging that rejection. In February 1987, Neaves J heard, and dismissed, that application. Mr Emanuele appealed to the Full Federal Court. In July 1987, the appeal was heard, and dismissed. Mr Emanuele filed an application for leave to appeal to the High Court of Australia. In November 1987, the application was refused. By that time the magistrate had fixed a new hearing date, 5 April 1988. Three weeks were set aside for the hearing. The commencement date was later altered to 11 April.
On 11 April, two years and 4 months after the charges were laid, the hearing commenced. But it did not progress quickly. Apart from taking brief evidence from the informant, Commander Dau, the whole of the time allocated by the magistrate was expended in argument about preliminary matters: production of the tapes and documents, claims for public interest immunity and privilege and similar matters. No doubt these preliminaries were important, but we cannot comprehend why they occupied three weeks' court time.
When the matter was about to be adjourned on 29 April, there was discussion about suitable dates for the resumption of the hearing. It was decided to reserve two weeks in December and a further two weeks in the following February (1989). These dates were later confirmed, but the December commitment was cancelled at the request of Mr Emanuele's counsel. The case resumed on 6 February. Commander Dau was cross-examined over 11 days. Because of this extensive cross-examination and other delays, the allotted four weeks expired on 3 March with him still in the witness box. Various dates later in the year were fixed and vacated. The case finally resumed, almost a year later, on 26 February 1990. Nineteen hearing days were allocated but Mr Fabrizioni was ill. So it was decided to fill the time by playing the tapes. Twelve days were devoted to that activity. Why it was thought useful to do this we do not know. There were already transcripts of the tapes. Their accuracy was not in dispute. Listening to tapes for 12 days must have been excruciatingly boring. More importantly, it was a waste of time and money. At the end of the 12 days, Commander Dau was returned to the witness box for a further four days cross-examination and one day's re-examination. We appreciate that Commander Dau was involved in setting up the listening device arrangements and instructing Mr Hedley regarding his contacts with Mr Emanuele; but we cannot understand why it was thought necessary to keep him in the witness box for 17 days. As we understand the position, he had no contact whatever with either accused.
Although some additional days had been found, time ran out on 12 April. At about this time the charge against Mr Fabrizioni was dropped. The proceeding continued against Mr Emanuele alone. Once again various dates were fixed and vacated. The hearing eventually resumed on 16 October 1990. Two days were spent on argument as to whether Mr Hedley could be cross-examined on the issue of entrapment; how this could have been in question, we do not understand. The hearing was adjourned to 6 November. On that day, counsel for Mr Emanuele applied for a summary trial of the charge. This was opposed and a decision deferred. The next few days were wasted while Mr Hedley read the tape transcripts.
On 14 November, just five years after the events of which Mr Hedley was to speak, he was called to give evidence. But, on 16 November, time ran out. The case was adjourned until 19 March. Mr Hedley was cross-examined on 11 days in March and April and the hearing further adjourned. It finally resumed on 16 October. Evidence was taken over four days from five witnesses. Counsel for Mr Emanuele renewed his application for a summary trial. This was again opposed but, on 21 October 1991, the magistrate ruled in favour of a summary trial. There was argument over the admissibility of the tape transcripts. After two days' evidence on the voir dire and submissions, the magistrate "declined to hold the transcripts inadmissible". He adjourned the case until February 1992.
Defence evidence occupied three days in February and March. The matter was then adjourned until 22 June for submissions. On that day counsel handed up extensive written submissions and addressed. The magistrate reserved his decision.
Seventeen months later, on 4 November 1993, the magistrate delivered a judgment in which he found the offence proved. He adjourned the matter of sentence until 17 December. On that day, defence evidence on sentence was heard, followed by submissions on 23 December. On 4 February 1994, the magistrate imposed the sentence earlier mentioned. In doing this, he brought to a close a proceeding that had spanned eight years and two months - according to Higgins J "the longest trial ever recorded with the exception of the trial of St Paul in Rome and the impeachment of Warren Hastings as Viceroy of India".
We will come to oppression later. But it should be said immediately that delay of this order is totally unacceptable. Not all responsibility for the delay rests with the magistrate. As the above narrative demonstrates, it took the prosecution almost a year to prepare its brief and the tape transcripts. Then the defence made a stay application and pursued this all the way to the High Court, despite the fact that its argument was rejected at every level. These factors made it impracticable to commence a hearing before early 1988. The first two years were lost through events outside the magistrate's control.
As to the position thereafter, we understand the pressures of the Magistrates' Court list. We appreciate that the magistrate was engaged during the relevant period in other cases, including some long and difficult matters. Even so, we think it our duty to say plainly that an effluxion of six years from the commencement to the completion of a "summary" trial is unfair to everybody concerned. It brings justice into disrepute. To some extent, the magistrate was the victim of his own good nature. It seems that, in looking for hearing dates, he was always willing to accommodate the commitments of counsel, even commitments that rendered counsel unavailable for months on end. We agree it is desirable to fix hearing dates suitable to counsel - not out of consideration for counsel but because parties are more likely to feel satisfied with the conduct of the case if they have been represented by their preferred counsel. But there comes a point at which efficiency must take precedence to the availability of particular counsel. In this case, provided adequate notice was given, there would have been no difficulty in a change of defence counsel. The prosecution changed counsel twice.
Two further points. As was recognised during the discussions between the magistrate and counsel in relation to hearing dates, the best course in this case would have been to fix a hearing date and continue the case, without interruption, from that date until its conclusion. This never happened, apparently largely because of counsel's other commitments. If this had been a jury trial, the case would have run continuously until conclusion; counsel would have had to reorganise their commitments accordingly. We do not see why they should not have been obliged to do the same thing in this case, when the alternative was to adjourn the case part-heard for many months at a time.
Secondly, it is apparent that much hearing time was wasted. Primary responsibility for this rests with counsel, but a presiding judicial officer is able to influence counsel's use of time by requiring efficient presentation of evidence and curtailing irrelevant and repetitious cross-examination.
The magistrate's decision
The magistrate accepted the account of the matter summarised above; very little of it was in contention. He found that there was a change of attitude by Mr Hedley after the conversation with Mr Fabrizioni on 13 November; Mr Hedley believed "that Fabrizioni had foreshadowed a possible corrupt approach by Emanuele or his group in respect of the tender process for the purchase of the Belconnen Mall". The magistrate said:
"What followed was then an elaborate operation by the AFP using Hedley as an agent provocateur to obtain evidence as to a possible offence. Hedley acted on advice from the AFP who in turn had sought detailed instructions from the Director of Public Prosecutions and his office. I am satisfied that Commander Dau gave detailed instructions to Hedley concerning the limits to which he could go in his role as an agent provocateur. The prosecution cannot escape the risk of entrapment purely on the basis that Hedley was not a police officer. I am satisfied in these circumstances that Hedley was acting as a police agent in the context of the operation in this case. Consequently, any actions by Hedley can be considered on the analysis of whether or not there was official entrapment.
...
Once the operation commenced, after 13 November 1985, there is no doubt that Hedley provided numerous instances of lies, deceit, misleading information to Emanuele and to some extent to his group. There is no doubt this subterfuge was used by Hedley in an attempt to lure Emanuele into [a] false sense of security and to believe that Hedley was corrupt and could be corrupted. Emanuele was completely misled as to his true status as a potential successful tenderer in the process to purchase the
Belconnen Mall. A completely falsely optimistic picture was provided to him at various stages, particularly on 27 and 28 November 1985. The evidence is clear that Hedley made numerous offers to assist Emanuele in whatever way he could and the strongest suggestion was that included corrupt assistance. That particularly became the case on 27 and 28 November 1985. Emanuele, on his own evidence, and obviously from the objective evidence of the conversations, became corrupted during the conversation that occurred in his room at the Lakeside after 5pm on 27 November 1985. I agree with the prosecution's submission that from that point on, Emanuele was the person making the offers and discussing the means and schemes by which a corrupt arrangement could be reached between himself and Hedley to best secure success for him in the tender process. Throughout this period, Hedley was repeatedly saying, 'What do you wish me to do? What are your plans?' and statements of that nature. It was clear that Emanuele fully appreciated that Hedley was offering himself to be corrupted in whatever way Emanuele saw fit."
In summarising the scheme followed by Mr Hedley, the
magistrate said:
"In accordance with police instructions he made no specific request for the payment of a bribe. But once the offer of a bribe was made, he participated enthusiastically and requested a cash payment of $10,000.00 in good faith from Emanuele."
Notwithstanding these findings, the magistrate declined to find entrapment. His reason was that Mr Emanuele had not claimed to have been entrapped. His defence was that he had not acted improperly. The magistrate said:
"I cannot be satisfied that Emanuele was induced to commit the crime that he otherwise would not have committed or would have been unlikely to commit as a result of the wrongful importunities of Hedley in this case. The sworn evidence of this defendant is that he was not induced to commit a crime at all. Accordingly, the matter of entrapment is not in this case established so as to give rise to the remedy of a stay of proceedings on the basis of abuse of process."
In contrast, in his reasons for decision on sentence, the magistrate said:
"It is clear in this case that Mr Hedley performed his role of deception extremely well and thoroughly duped Mr Emanuele into a situation where Mr Emanuele believed he was corrupt and wanting to be corrupted. Except for the incidents on the 18 October the police and the DPP were involved in the pretence. They may not have been controlling exactly what Mr Emanuele did, nor the extent of his actions, but certainly the whole purpose of an agent provocateur is to create a web of deception and to dupe the person who is being entrapped into the view that an offence is actually being committed. I think Mr Hedley did that job extremely well. Consequently, I am satisfied that due to the entrapment in this case the sentence should be reduced."
Higgins J's decision
Higgins J thought this was a case of entrapment. He referred to the test of entrapment enunciated by Samuels JA in The Queen v Hsing (1991) 25 NSWLR 685 at 691:
"Hence there is entrapment when (a) the authorities provide a person with an opportunity to commit an offence without acting on a reasonable suspicion that this person is already engaged in criminal activity, or pursuant to a bona fide inquiry; (b) although having such a reasonable suspicion or acting in the course of a bona fide inquiry, they go beyond providing an opportunity and induce the commission of an offence. To determine whether the activity impugned bears this character it is necessary to inquire whether it would have induced an ordinary person in the position of the accused to commit the offence."
Higgins J quoted Samuels JA's observation that "entrapment ... is not dependent on culpability, the focus should not be on the effect of the police conduct on the accused's state of mind but on the nature of that conduct itself". He noted that Hunt J agreed with Samuels JA and their approach was endorsed by the New South Wales Court of Criminal Appeal in Thompson and Thompson (1991) 58 A Crim R 451 and The Queen v Steffan (1993) 30 NSWLR 633 and by Gallop J in the Australian Capital Territory Supreme Court in The Queen v Managidis and Barbaro (1992) 107 FLR 250. Higgins J went on:
"None of these authorities address the question as to whether entrapment is excluded where an accused falsely claims that, despite being improperly induced to engaged in the conduct in question, he had no criminal intent. It seems to me that such a consideration cannot be relevant. If the accused person, having no predisposition to offend in fact does so merely because of the improper inducements of a police agent, it does not seem to me to matter that he falsely claims an innocent mind.
The correct approach is, I think, to ask whether the conduct alleged to be entrapment has been shown, on the Hsing test, to bear that character and then whether it has been shown to have, in fact, induced the criminal conduct in question.
Those conditions were satisfied here. It follows that his Worship fell into error in assuming that the appellant's false claim to have had an innocent mind when engaging in the criminal conduct in question excluded the exercise of a discretion to stay the proceedings before him or to exclude the evidence so obtained.
For that reason alone the appeal must be upheld".
In discussing oppression, Higgins J summarised, and criticised, the delay that occurred in the trial. He said:
"The manner in which the hearing was conducted can only be regarded as giving rise to a substantial miscarriage of justice. It is not a miscarriage in the sense that the learned Chief Magistrate 'lost the plot'. Nor, in my view, did he wrongly find any factual issue contrary to the evidence or the weight of the evidence. However, the delay in finalising the matter was oppressive. That justice delayed is justice denied is not answered by saying that the conclusion reached was correct and in accordance with law on the evidence before the court.
Oppressive proceedings may be stayed as an abuse of process."
Higgins J concluded:
"Because there was entrapment, a discretion to set aside the conviction and stay proceedings arose. Even if that discretion might not have been exercised favourably to the appellant if the proceedings had been promptly heard and concluded it would, in my view, be grossly unjust to permit the conviction and sentence to stand in the light of the oppressive manner in which the proceedings have been conducted.
I would, however, have concluded that the entrapment, as found by the learned Magistrate to exist, was so serious as to warrant a stay of proceedings by itself.
I order that the appeal be upheld. The conviction and sentence is set aside.
It is not appropriate to order an acquittal. Instead, I order that further proceedings on the information be permanently stayed."
Ridgeway
In the period between the decision of Higgins J and the hearing of this appeal the High Court of Australia delivered judgment in Ridgeway v The Queen (1995) 129 ALR 41. The case is important to the argument concerning entrapment, so we will summarise it before examining counsel's submissions.
Ridgeway was convicted in a South Australian court of being in possession of imported heroin. Being anxious to procure heroin, Ridgeway had contacted a man named Lee in Malaysia. Unbeknown to Ridgeway, Lee had become a registered police informer. He reported the contact to the Malaysian Police who informed the Australian Federal Police. Lee and a Malaysian police officer, Chong, purchased a quantity of heroin. With the co-operation of the Australian Federal Police, they brought it to Australia and sold a trafficable quantity to Ridgeway. Ridgeway was then arrested and charged. There was evidence of all elements of the alleged offence but he advanced a defence of entrapment. This defence was rejected at the trial and on appeal to the Full Court of the Supreme Court of South Australia. On further appeal, the High Court unanimously held that entrapment is not a substantive defence to a criminal charge. However, by majority (Mason CJ, Brennan, Deane, Dawson, Toohey and Gaudron JJ, McHugh J dissenting) the Court held that the law recognises a
discretion to exclude, on public policy grounds, evidence of an offence, or of an element of an offence, induced by unlawful conduct on the part of law enforcement officers. Mason CJ, Deane and Dawson JJ held the discretion to exclude evidence also extends to an offence induced by improper (as distinct from unlawful) official conduct. By majority, the Court held that all evidence tending to show that the heroin had been imported into Australia should be rejected on public policy grounds. Ridgeway's conviction was quashed and proceedings permanently stayed.
In dealing with unlawful conduct by law enforcement officers, Mason CJ, Deane and Dawson JJ referred to Bunning v Cross (1978) 141 CLR 54 in which it was stated to be "settled law" that a trial judge has a discretion to exclude prosecution evidence on public policy grounds where it has been obtained by unlawful conduct by police officers. They went on, at 48-49:
"Clearly enough, in a criminal trial there is a distinction between a discretion to exclude particular evidence and a discretion to exclude any evidence at all which tends to establish the accused's guilt of the alleged crime or of an element of it. None the less, the existence of the discretion to exclude evidence procured by unlawful conduct on the part of law enforcement officers provides strong support, by way of analogy, for the recognition of a discretion to exclude evidence of the accused's guilt either of an alleged crime or of an element of it in circumstances where the actual commission of the crime was procured by such unlawful conduct. Indeed, the distinction between the two discretions can, in some circumstances, be of theoretical rather than practical importance. Thus, in a case where a course of unlawful conduct on the part of the police has procured both the commission of the offence and evidence of it, there will be little practical significance in the distinction between an exclusion of that particular evidence on the ground that it was procured by the illegal conduct and the exclusion of all evidence on the ground that the commission of the offence was itself procured by that conduct if the only evidence against the accused is that which was unlawfully procured.
More importantly, the considerations of 'high public policy' which justify the existence of the discretion to exclude particular evidence in the case where it has been unlawfully obtained are likewise applicable to support the recognition of a more general discretion to exclude any evidence of guilt in the case where the actual commission of the offence was procured by unlawful conduct on the part of law enforcement officers for the purpose of obtaining a conviction. In both categories of case, circumstances can arise in which the need to discourage unlawful conduct on the part of law enforcement officers and to preserve the integrity of the administration of criminal justice outweighs the public interest in the conviction of those guilty of crime. In both categories, the objective of the unlawful conduct is the obtaining of curial advantage: the use of the unlawfully procured evidence in one category; the obtaining of a conviction for the unlawfully procured offence in the other. In both, the reception of the evidence by the courts is a critical step in the obtaining of that objective. If, in relation to either category, no judicial discretion existed to prevent the curial advantage being derived from the unlawful conduct, statements of judicial disapproval would be likely to be hollow and unavailing and the administration of justice would be likely to be 'demeaned by the uncontrolled use of the fruits of illegality in the judicial process'. Indeed, there is much to be said for the view that the considerations favouring the exclusion of unlawfully procured evidence of a crime which had already been committed are likely to be less compelling than those favouring the exclusion of evidence of a crime which would never have been committed but for such unlawful conduct on the part of law enforcement officers designed to bring about its commission."
Their Honours observed that "the two principal considerations weighing against the recognition of a judicial discretion to reject evidence of an offence procured by illegal conduct on the part of law enforcement officers were also the principal considerations which weighed against the recognition of the discretion to reject unlawfully procured evidence": the legitimate public interest in the conviction of those guilty of crime and the separation of executive and judicial functions. Notwithstanding these objections, the law has taken the step of excluding illegally procured evidence. They thought it should also recognise the existence of a judicial discretion to exclude evidence of an illegally procured offence.
Although, on the facts before them, it was strictly unnecessary for them to do, their Honours dealt with improper (as distinct from unlawful) conduct. They said at 52-53:
"In a context where ancillary offences - such as counselling, being knowingly concerned in, inducing, aiding, abetting and procuring - exist, in one form or another, in all Australian jurisdictions and where no laws exist authorising law enforcement officers to encourage or participate in the commission of criminal offences in order to enable the apprehension and procure the conviction of those whom they believe to be involved in criminal activity, it is likely that conduct which intentionally procures the commission of a criminal offence by another will itself be criminal. None the less, circumstances can conceivably exist in which a law enforcement officer intentionally brings about the opportunity for the commission of a criminal offence by conduct which is not criminal but which is quite inconsistent with the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement. Extreme cases of creating circumstances of temptation under which a vulnerable but otherwise law-abiding citizen commits an offence of a kind which (so far as the police are concerned) he or she otherwise might not have committed provide possible examples. As the Supreme Court of Canada pointed out in R v Mack (1988) 44 CCC (3d) 513 at 541, 'there are inherent limits on the power of the state to manipulate people and events for the purpose of attaining the specific objective of obtaining convictions'. The rationale of the discretion requires that it extend to cases where those 'inherent limits' are exceeded.
...
Moreover, the Bunning v Cross discretion to exclude illegally procured evidence provides, by analogy, support for the conclusion that the discretion to exclude evidence of an offence or an element of an offence procured by unlawful conduct on the part of law enforcement authorities extends to evidence of an offence or an element of an offence procured by conduct which, while not unlawful, is improper. Thus, in R v Ireland (1970) 126 CLR 321 at 334-335, Barwick CJ made clear that the discretion to exclude evidence on public policy grounds extended to evidence obtained by 'unfair' as well as 'unlawful' conduct on the part of law enforcement officers. In their judgment in Bunning v Cross, Stephen and Aickin JJ did not qualify their acceptance of Barwick CJ's judgment in Ireland by confining the discretion to a case of unlawful conduct. To the contrary, their Honours plainly accepted that the discretion extended to 'unfair ... conduct on the part of the authorities'. Their Honours did, however, indicate a preference for the phrase 'improper conduct', pointing out that 'unfair' is largely meaningless when considering certain types of evidence (eg improperly obtained finger print evidence). In subsequent cases, the words 'improper' and 'impropriety' have been generally preferred to the words 'unfair' and 'unfairness' and it has been accepted as established that the Bunning v Cross discretion extends to cases of either unlawful or improper conduct on the part of the authorities.
The effective investigation by the police of some types of criminal activity may necessarily involve subterfuge, deceit and the intentional creation of opportunities for the commission by a suspect of a criminal offence. When those tactics do not involve illegal conduct, their use will ordinarily be legitimate notwithstanding that they are conducive to the commission of a criminal offence by a person believed to be engaged in criminal activity. It is neither practicable nor desirable to seek to define with precision the borderline between what is acceptable and what is improper in relation to such conduct. The most that can be said is that the stage of impropriety will be reached in the case of conduct which is not illegal only in cases involving a degree of harassment or manipulation which is clearly inconsistent with minimum standards of acceptable police conduct in all the circumstances, including, amongst other things, the nature and extent of any known or suspected existing or threatened criminal activity, the basis and justification of any suspicion, the difficulty of effective investigation or prevention and any imminent danger to the community. A finding that law enforcement officers have engaged in such clearly improper conduct will not, of course, suffice of itself to give rise to the discretion to exclude evidence of the alleged offence or of an element of it. As with the case of illegal conduct, the discretion will only arise if the conduct has procured the commission of the offence with which the accused is charged."
In discussing the exercise of the discretion, Mason CJ, Deane and Dawson JJ explained what they meant by an offence being "procured" by illegal conduct on the part of law enforcement officers. At 54-55 they described two categories of case:
"The first category consists of cases in which the police conduct has induced an accused person to commit the offence which he or she has committed. In that category of case, the public interest in the conviction and punishment of those guilty of crime is likely to prevail over other considerations except in what we would hope to be the rare and exceptional case where the illegality or impropriety of the police conduct is grave and either so calculated or so entrenched that it is clear that considerations of public policy relating to the administration of criminal justice require exclusion of the evidence. The other category of case is where illegal police conduct is itself the principal offence to which the charged offence is ancillary or creates or itself constitutes an essential ingredient of the charged offence. An example of that category is a case where a person is charged with receipt or possession of stolen property in circumstances where not only the supply, but the actual theft, of the stolen property had been organized by the police for the purpose of obtaining the conviction of the person to whom it is supplied. In that category of case, the police illegality and the threat to the rule of law which it involves assume a particularly malignant aspect. Even in such a case, if the police conduct is disowned by those in higher authority and criminal proceedings have been instituted against the police as well as the accused, it is unlikely that considerations of public policy relating to the integrity of the administration of criminal justice would require the exclusion of evidence either of the accused's offence or of the particular element of it created by the police illegality. If, however, the illegal police conduct would appear to be condoned by those in higher authority and it does not appear that criminal proceedings have been brought against the police, those considerations of public policy will be so strong that an extremely formidable case for exclusion will be raised. Indeed, if the courts were prepared to allow curial advantage to be derived from the police illegality in such circumstances, there could be no satisfactory answer to Macrossan CJ's rhetorical question 'at what point would it ever be appropriate to demur and offer objection?"
Brennan J held at 65 that evidence of the importation should have been rejected, this being a criminal activity undertaken by a police agent. If that had been done, the prosecution could not have succeeded. He thought the conviction should be quashed and an acquittal entered. At 74 Toohey J came to a similar conclusion. Neither Justice dealt with improper, but not unlawful, police conduct. Gaudron J at 86 also held that evidence of the importation should have been excluded. She thought the conviction should be quashed and a stay ordered. McHugh J dissented. He thought the conduct of the police did not bring the administration of justice into disrepute and Ridgeway was not entitled to a stay of proceedings.
Entrapment - discussion
Counsel for the appellant, Mr P S Hastings QC, submitted to us that the conclusion of the magistrate on the issue of entrapment was correct. He said that the offence with which Mr Emanuele was charged involved two fundamental elements: the physical action of paying or offering to pay money and the mental element of intending to influence Mr Hedley in the discharge of his duties. He said that, as Mr Emanuele denied ever possessing the necessary intention, there was "no valid basis for establishing that he was induced to commit it". Mr Hastings submitted that Higgins J erred in concluding that Mr Emanuele's claim that he had no criminal intent could not be relevant. He said this was inconsistent with statements in Ridgeway. He referred to a comment by Mason CJ, Deane and Dawson JJ at 45 that "it is a central thesis of our criminal law that a person who voluntarily and with the necessary intent commits all the objective elements of a criminal offence is guilty of that offence regardless of whether he or she was induced to act by another, whether private citizen or law enforcement officer". He also mentioned Brennan J's comment at 60 that "an offender does not escape liability merely because he was induced to commit the offence by another, whether the other be a friend, a business associate or a member of the police force".
We do not accept these submissions. We do not think the comments in Ridgeway to which Mr Hastings referred bear on the present question. It is true that Mr Emanuele denied any impropriety or intention to corrupt. However, understandably in the light of the tapes, the magistrate rejected his denial. The magistrate concluded that he did intend to corrupt Mr Hedley but was induced to do so by the course of conduct taken by Mr Hedley acting on behalf of the law enforcement authorities. If that is the correct view of the facts, it is immaterial, that, on the way to that conclusion, the magistrate considered and rejected a claim that there was no intention to corrupt.
The precise point was raised for decision comparatively recently in the Supreme Court of the United States of America. The case was Mathews v United States (1988) 485 U.S. 58. The circumstances were remarkably similar to those in evidence in the present appeal. In response to the argument that the accused should not be permitted, while denying any criminal intent, to assert he had been entrapped into the crime, the Court pointed out that the law regularly allows inconsistent defences to be maintained in the alternative. Rehnquist CJ, who wrote the Opinion of the Court, said at 66:
"We are simply not persuaded by the Government's arguments that we should make the availability of an instruction on entrapment where the evidence justifies it subject to a requirement of consistency to which no other such defense is subject".
This decision was cited in Ridgeway at 46 by Mason CJ, Deane and Dawson JJ, without relevant comment.
Mr Hastings also submitted that Higgins J erred in holding that Mr Emanuele had not been predisposed to commit the offence and would not have done so but for the actions of Mr Hedley. He said that, whatever the implications of Mr Hedley providing Mr Emanuele with information as to potential tenderers, he was warned on three occasions by his advisers against having private dealings with Mr Hedley. There is no doubt this is so. On the afternoon of 27 November, Mr Archbold told Mr Emanuele that, although it might be possible for either him (Mr Emanuele) or Mr Fabrizioni to have a private conversation with Mr Hedley, neither of them should go near him. Immediately after the conversation, Mr Emanuele telephoned Mr Hedley to arrange a private meeting later that day. It was during that meeting that he first spoke about paying money. Shortly after that meeting, Mr Wales told him of a warning about impropriety given to him by a public servant. Later that evening, after Mr Emanuele's confirmatory conversation with Mr Hedley, Mr Wales repeated his warning to Mr Emanuele about dealing with Mr Hedley, telling him he would end up in gaol if he involved himself in any impropriety. Mr Hastings argued that, in the light of this evidence, Higgins J erred in holding that there was entrapment in accordance with the tests enunciated in Hsing.
We disagree. That Mr Emanuele ignored the warnings given to him during the afternoon and evening of 27 November shows that he was then set on his corrupt course. But this was late in the story. By that time, Mr Hedley had given him every reason to believe that he (Mr Hedley) was amenable to a bribe. The climate for this belief was established at least as early as 18 October, when the two men dined together and Mr Hedley gave Mr Emanuele information about other tenderers. We say "at least" because Mr Hedley's earlier conduct towards Mr Emanuele (meeting him at the airport on several occasions, discussing his own property interests and eating with him) went beyond what one would normally expect of a public servant dealing with a prospective tenderer, even a naturally friendly public servant enthusiastic about his work and anxious to procure tenders for the Mall. Whether or not this conduct caused Mr Emanuele to feel that Mr Hedley was prepared to compromise himself, he must have thought this a possibility after the gross breach of propriety on 18 October. If Mr Fabrizioni's approach to Mr Hedley on 17 November 1985 became known to Mr Emanuele, as seems likely, Mr Emanuele might well have been encouraged in such a belief by Mr Hedley's failure to reject the suggestion of a bribe. It is not easy to understand why Mr Hedley did not immediately inform Mr Fabrizioni that his suggestion was unacceptable and prejudicial to Mr Emanuele's tender. If he was so shocked that he did not think of saying this, it surely would have been easy for him, afterwards, to communicate a message to that effect. It seems to us likely that, if Mr Hedley had clearly and firmly rejected the suggestion of a bribe, that would have been the end of the matter. There would have been no need to use listening devices and no risk of the Commonwealth losing a potential tenderer.
However, that course was not taken; it was decided to use listening devices to capture Mr Emanuele's conversations. Even so, it was not necessary for Mr Hedley to initiate impropriety. Yet this is what he did. He not only failed to send a signal, after the 17 November conversation, that impropriety was unacceptable. He did the opposite. At the outset of the next contact, as he was driving Mr Emanuele and his associates from the airport to the hotel, Mr Hedley brought up the topic of other tenderers, commenting that things were "a bit grim" because of high interest rates, that he (Mr Emanuele) and Mr Alter were the only guaranteed tenderers and that Mr Alter was ineligible. Under questioning, then and later in the day, he retailed information given to him by other prospective tenderers. It is no wonder that Mr Archbold was prepared to make a reference to an "additional cash incentive". He must have felt encouraged by Mr Hedley's response "I've got a commercial mind". There was talk of "another carrot at the other end" which Mr Hedley said "might" appeal "to (his) organisation". He said he had "to know what the details are", "you tell me what you want to do" and offered to "talk to Joe privately" in the hotel room. There was more along the same lines. The conversation ended with Mr Hedley saying: "I'm prepared to talk turkey with you, with Tony, with Joe whoever he want to talk to me about any deal they want to put up alright. We'll talk wherever you want to talk". Particularly coming on top of his past improprieties, this could only be interpreted as a statement by Mr Hedley that he was available for corruption. But, in case the point had been missed, Mr Hedley told Mr Emanuele at lunch time that he was prepared to talk confidentially to him, adding "I can do a deal, you know". As both men knew, there was no way he could do a legitimate deal, on behalf of the Commonwealth. The Commonwealth was committed to the tender process. In the hotel room that afternoon, Mr Hedley encouraged Mr Emanuele: "You can speak freely with me ... nobody else here ... we can talk". He mentioned his conversation with Mr Fabrizioni and said: "You put something to me and I'll just ... you know". Given that Mr Emanuele had apparently been thinking about offering a bribe, it is not surprising that this unsubtle hint finally emboldened him to do so. Mr Emanuele mentioned $50,000 but had difficulty framing his proposition. Mr Hedley put him at his ease: "You're not offending me ... its a question of ... trying to work something out". Thus assisted, Mr Emanuele outlined his proposal. As the magistrate found, the effect of Mr Hedley's conduct was "to lure Emanuele into [a] false sense of security and to believe that Hedley was corrupt and could be corrupted ... It was clear that Emanuele fully appreciated that Hedley was offering himself to be corrupted in whatever way Emanuele saw fit". Why Mr Hedley chose to do this is difficult to say. There was no personal advantage to him in doing so, and only detriment to the Commonwealth. Perhaps he simply became carried away by the thrill of the chase, as Higgins J suggested.
Although there was disagreement in Ridgeway about the correctness of the view propounded in Hsing, that the appropriate course in an entrapment case is to stay the proceeding as an abuse of process, there was no disagreement with Samuels JA's tests for determining what constitutes an entrapment. Probably Mr Hedley's conduct met both tests. But it is sufficient to say that it met the second; whether or not Mr Hedley (and the law enforcement officers who encouraged and supported him) had a reasonable suspicion that Mr Emanuele was already engaged in criminal activity or was acting in the course of a bona fide inquiry, he went beyond providing an opportunity. He actively induced the offence.
In dealing with impropriety, as distinct from illegality, in Ridgeway, Mason CJ, Deane and Dawson JJ looked for conduct "involving a degree of harassment or manipulation which is clearly inconsistent with minimum standards of acceptable police conduct in all the circumstances". The principle was succintly stated by Frankfurter J in Sherman v
United States (1958) 356 US 369 at 380:
"The courts refuse to convict an entrapped defendant, not because his conduct falls outside the proscription of the statute, but because, even if his guilt be admitted, the methods employed on behalf of the Government to bring about conviction cannot be countenanced".
In making a judgment about the question of degree referred to in Ridgeway, it is necessary to consider, first, the nature and extent of any existing or threatened criminal activity; in the present case there was no prior criminal history and no offence when Mr Hedley commenced his manipulation. Second, the basis and justification of suspicion; here this was indirect, a tentative comment by Mr Fabrizioni. Third, the difficulty of effective investigation and prevention; here a word would probably have prevented any offence. Finally, it is necessary to consider any "imminent danger" to the community. Accepting (as we do) that corruption of public officials is a great evil, capable over time of undermining community values and stability, it can hardly be said that the possibility of one bribe offer amounted to an "imminent danger" to the community. Applying the test enunciated by their Honours, it seems to us that the degree of manipulation undertaken by Mr Hedley on behalf of the law enforcement authorities extended well over the boundary into the realm of improper conduct.
Mason CJ, Deane and Dawson JJ explained that, where police conduct has induced an accused person to commit an offence, "the public interest in the conviction and punishment of those guilty of crime is likely to prevail over other considerations". However, they made an exception -
"where the illegality or impropriety of the police conduct is grave and either so calculated or so entrenched that it is clear that considerations of public policy relating to the administration of criminal justice require exclusion of the evidence".
If the words "police conduct" are read in this case so as to include the conduct of Mr Hedley, it seems to us that the exception applies. It is difficult to imagine greater impropriety for a Commonwealth public servant than the deliberate disclosure of commercially sensitive information to a person able to use it to the Commonwealth's disadvantage and the spinning of a web of deceit, involving heavy hints, for the purpose of inducing that person to commit an offence. We do not say that such conduct is "entrenched". On the contrary, we do not know of a comparable case. But it is conduct so "calculated" that considerations of public policy require exclusion of the relevant evidence.
In our opinion, Higgins J was correct in upholding the claim of entrapment and in concluding, in the exercise of his discretion, that evidence of the improperly procured offence should have been excluded. It follows that he was correct in setting aside the conviction and sentence and ordering a stay of proceedings; not because the proceedings constituted an abuse of process but because the exclusion of the evidence necessarily results in failure of the prosecution case.
Oppression
We have summarised the history of the hearing before the magistrate. Mr Hastings argued that Higgins J erred in holding that the proceedings should be stayed on the ground of oppression. He said that delay is not enough; actual prejudice must be shown. He cited Jago v District Court of New South Wales (1989) 168 CLR 3 at 72 and 78 and submitted that the same test should be applied in relation to complaints about prolonged hearings; delay simpliciter does not constitute a miscarriage of justice. Counsel said that Higgins J did not find that Mr Emanuele sustained actual prejudice as a result of the magistrate's delay in resolving the matter and suggested reasons why he could not have so held.
It is unnecessary to determine the validity of these submissions. We are critical of the time taken to complete the summary trial. But we are conscious that not all the fault lay with the magistrate; the time was extended because of actions taken by Mr Emanuele and his lawyers. In order to determine the issue of oppression, it would be necessary to analyse the extent of the delay caused by the conduct of the trial and actions of the prosecution, as distinct from actions of the defence, and to consider the extent of the prejudice thereby occasioned. Having regard to our view about the first issue, it is not useful to undertake this task.
Orders
The decision of Higgins J should be upheld. The appeal should be dismissed.
I certify that this and the preceding forty-one (41) pages
are a true copy of the Reasons for Judgment
of the Court.
Associate:
Dated: 4 December 1995
APPEARANCES
Counsel for the Applicant: P Hastings QC
Solicitors for the Applicant: Commonwealth Department of Public Prosecutions
Counsel for the Respondent: K V Borick QC and G B Hevey
Solicitors for the Respondent: Blake Dawson & Waldron
Date of hearing: 20 June 1995
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